This Note explores the “Draconian dilemma” an attorney faces when she is confronted by a client who discloses his HIV status and his on-going intimate sexual relations during contacts in furtherance of the legal representation. The Note examines the attorney's potential exposure to civil liability that might result from either disclosure or retention of confidence. It also outline sseveral avenues of legal claims that both third parties and clients might pursue in response to the attorney's actions. Although few plaintiffs have tested the viability of these causes of action, the Article considers whether third parties who are at risk would have success in suits against the attorney for failure to warn of risk of transmission.
This Note also examines existing guidance for attorneys found in the ABA Model Rules of Professional Conduct and the Model Code of Professional Responsibility. While neither source delivers a clear message to attorneys confronted by this dilemma, both sources indicate a strong preference for the maintenance of client confidences.
GW Paper Series
GWU Legal Studies Research Paper No. 2012-130, GWU Law School Public Law Research Paper No. 2012-130
Laurie S. Kohn, Note, Infecting Attorney-Client Confidentiality: The Ethics of HIV Disclosure, 9 GEO. J. LEGAL ETHICS 547 (1996).